1708072 (Migration)

[2019] AATA 2044

1708072 (Migration) [2019] AATA 2044 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708072

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:          14 February 2019 at 10:30 am (WA time)

DATE OF WRITTEN RECORD:                22 February 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 22 February 2019 at 4:05pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor)(Class UB) visa – Subclass 602 (Medical Treatment) – application received more than 28 days after last substantiative visa ceased – application received more than 6 months later – personal circumstance lead to failure to apply in time – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.213; Schedule 3, PIC 3001


Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

ORAL DECISION OF MEMBER JUDD

MEMBER: This is an application for a review of a delegate of the Minister for Immigration, on 27 March 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) Visa under section 65 of the Migration Act.

The applicant applied for the visa on 23 March 2017. At that time Class UB contained one subclass, subclass 602 (Medical Treatment). The criteria are set out in part 602 of schedule 2 to the Migration Regulations 1994. The delegate refused to grant the applicant the visa because clause 602.213 of schedule 2 and the public PIC3001 criterion, in schedule 3 to the regulations, require the application to be validly made within 28 days after the date when the last substantive visa ceased to be in effect.

It has been properly conceded, on behalf of the applicant, that the last substantive visa, which was a TU573 visa, ceased to be in effect on 30 August 2016.  Consequently, the delegate found that the applicant did not hold a substantive temporary visa at time of application, and it was decided that she did not meet subclauses 602.213(1) and 602.213(2).  The delegate decided that the application had been received more than 28 days after the last substantiative visa had ceased.  The tribunal notes that it was received a little bit over 6 months later.  Having made this founding, the delegate found that the application did not satisfy PIC criteria 3001, and the criteria in 602.2133 and clause 602.2134, and 602.2135.  She must, of course, pursuant to clause 602.2135 meet all of the schedule 3 criteria.

The tribunal notes that clause 602.2135, which requires the applicant to satisfy schedule 3, was repealed by the Migration Legislation Amendment (2017 Measures 3 Regulations) 2017.  Item 6503 of the amending regulations relating to the operation and applicability of the repeal of clause 602.2135 provides that the relevant amendment applies only in relation to an application for a Medical Treatment (Visitor) (Class UB) Visa made on or after 1 July 2017.  In the applicant's case, she applied on 23 March 2017.  The effect is that the provisions of clause 602.213(5) remains a live issue, for the applicant.  She has to meet clause 602.213(5), as enforced at the time of her application on 23 March 2017.

The issue was identified by the tribunal, and invitation was sent to Mr [A] as the representative, should he wish to provide submissions.  The response can be summaries as follows:

It is accepted that the provisions of clause 602.213(5) in schedule 2 to the regulations were, at time of application, cannot be overcome by the applicant.  If it were a time of decision requirement, then the applicant could not now meet other essential criteria, such as clause 602.212(6), the need for medical treatment.  And the requirement that it is intended only as a temporary stay.

At its highest, I simply submit that the change in regulations is a limited additional factor in considering whether the matter can be appropriately referred by the member to the minister, in that, if the applicant was in the same situation today, then the fact that it was more than 28 days since her substantive visa expired may not be now fatal to her visa application.

The primary thrust of the submission is the applicant's personal factors that read to her failure to apply for the subclause 485 visa, when she had a window of opportunity to do so, and her current situation with regard her Australian citizen [child].

The applicant appears before the tribunal today, 14 February 2019 at 10 am to give evidence and present arguments.  There is a nominated witness, but that witness relates, as I understand, primarily to another issue, being whether there should be a humanitarian referral.  The applicant was represented in relation to the review by her registered migration agent, Mr [A], who the tribunal is also aware is a barrister and solicitor, authorised to practice in Western Australia.

Consideration of claims of evidence:  the subclass 602 Medical Treatment Visa is for persons seeking to visit or remain in Australia, temporarily, for medical treatment or related purposes.  The primary issue in this case is whether the mentioned schedule 3 criteria apply to the applicant's circumstances, and if so, what flows from that.  In the present case, the applicant does not meet clause 602.212(6), in that she was in Australia at the time of the application, did not hold a substantive temporary visa at that time, and the last such visa held was not a subclass 403 or 426 visa.

In the circumstances, the applicant must meet the schedule 3 criteria 3001, 3003, 3004, 3005 before the tribunal is required to go on, and consider the substantive visa review.  The question is criterion 3001 met?  In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day.  The relevant day is defined in clause 30012.  In this matter, it has been conceded, properly, that the last substantive visa expired on 30 August 2016.  The tribunal accepts that this day is also the relevant day.  The tribunal finds that the visa application was not made within 28 days of that relevant day, having regard to the definitions of that term in clause 30012.  As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

The next heading is, "Conclusion on clause 602.213."  Based on the findings above, the applicant does not meet the requirements for the grant of the visa.  The decision under review must be affirmed. The tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) Visa.

END OF ORAL DECISION